Natural law
Natural law[1] (Latin: ius naturale, lex naturalis) is a system of law based on a close observation of natural order and human nature, from which values thought, by the proponents of this concept to be intrinsic to human nature, can be deduced and applied independently of positive law (the express enacted laws of a state or society).[2] According to the theory of law called jusnaturalism, all people have inherent rights, conferred not by act of legislation but by "God, nature, or reason."[3] Natural law theory can also refer to "theories of ethics, theories of politics, theories of civil law, and theories of religious morality."[4]
Not to be confused with Natural justice.
In Western tradition, it was anticipated by the pre-Socratics, for example, in their search for principles that governed the cosmos and human beings. The concept of natural law was documented in ancient Greek philosophy, including Aristotle,[5] and was referred to in ancient Roman philosophy by Cicero. References to it are also to be found in the Old and New Testaments of the Bible, and were later expounded upon in the Middle Ages by Christian philosophers such as Albert the Great and Thomas Aquinas. The School of Salamanca made notable contributions during the Renaissance.
Although the central ideas of natural law had been part of Christian thought since the Roman Empire, the foundation for natural law as a consistent system was laid by Aquinas, as he synthesised ideas from his predecessors and condensed them into his "Lex Naturalis" (lit. 'Natural law').[6] Aquinas argues that because human beings have reason, and because reason is a spark of the divine (see: image of God), all human lives are sacred and of infinite value compared to any other created object, meaning all humans are fundamentally equal and bestowed with an intrinsic basic set of rights that no human can remove.
Modern natural law theories took shape in the Age of Enlightenment, combining inspiration from Roman law, Christian scholastic philosophy, and contemporary concepts such as social contract theory. It was used in challenging the theory of the divine right of kings, and became an alternative justification for the establishment of a social contract, positive law, and government—and thus legal rights—in the form of classical republicanism. In the early decades of the 21st century, the concept of natural law is closely related to the concept of natural rights. Indeed, many philosophers, jurists and scholars use natural law synonymously with natural rights (Latin: ius naturale), or natural justice,[7] though others distinguish between natural law and natural right.[8]
Because of the intersection between natural law and natural rights, natural law has been attributed as a key component in the Act of Abjuration (1581) of the Netherlands, the Declaration of Independence (1776) of the United States, the Declaration of the Rights of Man and of the Citizen (1789) of France, the Universal Declaration of Human Rights (1948) of the United Nations, and the European Convention on Human Rights (1953) of the Council of Europe.
One modern articulation of the concept of natural laws was given by Belina and Dzudzek:[143]
In jurisprudence, natural law can refer to the several doctrines:
These meanings can either oppose or complement each other, although they share the common trait that they rely on inherence as opposed to design in finding just laws.
Whereas legal positivism would say that a law can be unjust without it being any less a law, a natural law jurisprudence would say that there is something legally deficient about an unjust norm.
Besides utilitarianism and Kantianism, natural law jurisprudence has in common with virtue ethics that it is a live option for a first principles ethics theory in analytic philosophy.
The concept of natural law was very important in the development of the English common law. In the struggles between Parliament and the monarch, Parliament often made reference to the Fundamental Laws of England, which were at times said to embody natural law principles since time immemorial and set limits on the power of the monarchy. According to William Blackstone, however, natural law might be useful in determining the content of the common law and in deciding cases of equity, but was not itself identical with the laws of England. Nonetheless, the implication of natural law in the common law tradition has meant that the great opponents of natural law and advocates of legal positivism, like Jeremy Bentham, have also been staunch critics of the common law.
Today, the most cited authors in literature related to natural law are, in their order: Aquinas, John Finnis, John Locke, Lon Fuller, Ronald Dworkin, and James Wilson, who participated in drafting the U.S. Declaration of Independence.[144] It shows how Aquinas has still a significant influence on the topic. The second Australian professor at Oxford University, John Finnis, is the most prominent contemporary natural law jurist alive. Other authors, like the Americans Germain Grisez, Robert P. George, and Canadian Joseph Boyle and Brazilian Emídio Brasileiro are also constructing a new version of natural law. They created a school called "New Natural Law", originated by Grisez. It focuses on "basic human goods", such as human life, knowledge, and aesthetic experience, which are self-evidently and intrinsically worthwhile, and states that these goods reveal themselves as being incommensurable with one another.
The 19th-century anarchist and legal theorist Lysander Spooner was also a figure in the expression of modern natural law.
The tensions between natural law and positive law have played, and continue to play, a key role in the development of international law.[145]
U.S. Supreme Court justices Clarence Thomas[146][147][148] and Neil Gorsuch[149][150] are proponents of natural law.
Methodology[edit]
The authors and supporters of natural law use various methods to develop and articulate their ideas. Here are some of the commonly employed methods:
1. Rational Inquiry and Human Reason: Natural law theorists often engage in rational inquiry to explore the nature of human beings, their moral obligations, and the principles that govern human conduct. They rely on logical reasoning and philosophical analysis to derive principles of natural law. Most Modern scholars dedicated to natural law will follow this rationalistic approach.
2. Observation of Nature: Natural law authors sometimes draw on observations of the natural world and human behavior to derive moral principles. According to Aristotle[151] and Aquinas,[152] it is possible to examine the humans powers and inclinations, to detect what kind of goods are achievable and deserve to be reached.
3. Historical and Comparative Analysis: Some authors of natural law examine historical legal systems and comparative law to identify common moral principles embedded within them. They may explore ancient legal codes, religious texts, and philosophical treatises to uncover ethical norms that have stood the test of time. To some extent, Montesquieu and Max Gluckman did a similar analysis, although the latter under another school of thought.[153]
4. Axiology and Theology: Natural law theorists often incorporate resort to several ends and values to detect principles and rules of natural law. For instance, John Finnis develops natural law based on seven basic good (life, knowledge, play, aesthetic experience, sociability, practical reasonableness, religion) that he believes are self-evident.[154]
5. Dialogue, Debate, Experience, Interpretation and other schools: Several Natural law methds have been developed in different schools. Some authors engage in scholarly dialogue and debate with other philosophers and ethicists. They present their arguments, respond to objections, and refine their theories through critical discussion and exchange of ideas. Michael Moore has presented his realistic interpretational approach to the law.[155] Quite different will be the view of Lon Fuller. It's important to note that the methods employed by authors of natural law may vary depending on their specific philosophical perspectives and the historical context in which they work. Different natural law theorists may emphasize different approaches in their efforts to articulate the foundations and implications of natural law.
Nevertheless, Riofrio[156] has detected in a quantitative and qualitative analysis of the most cited papers of natural law, that authors dedicated to natural law usually take into account some elements to deduce others. For instance, Finnis deduces legal principles and natural rights from the seven basic goods;[154] Aquinas deduces the human goods from the human powers,[152] and so on. The elements of the so-called "Natural Law Formula",[156] are the following ones: being (of people and things) - potencies of human beings and things - aims and inclinations of those potencies; means - human values or goods - ethical and legal principles - rules - natural and positive rights - cases and circumstances.